December 28, 2005

The President's "Inherent" Power

The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.

One of the jobs of the Department of Justice is to protect the constitutional prerogatives of the President, and after 9/11, it is hardly surprising to find bold claims of this sort. My first goal here is to make some progress in understanding the legal issues by sketching the general framework under which they might be analyzed. My second goal is to suggest that it is often best to refuse to resolve issues of inherent authority, and to answer the legal question while leaving those issues undecided.

It is tempting to take one of two positions on the President's claims of inherent authority. (1) He has such authority under the Commander-in-Chief Clause or the vesting of "executive" power. (2) He lacks such authority, and if he has it, he cannot exercise it without running afoul of the Bill of Rights (eg the Fourth Amendment in the case of surveillance and the Due Process Clause in the case of detention). The debate between (1) and (2) is often very high-level, and forces a judgment about some of the largest unresolved questions in constitutional law.

In his concurring opinion in The Steel Seizure Case, Justice Jackson tried to refine the battle between (1) and (2) by drawing attention to Congress. He suggested that we might also adopt two other positions. (3) The President has such authority because Congress has said that he does, thus augmenting the President's own power with "all that Congress can delegate." (4) The President lacks such authority because Congress has said that he doesn't, ensuring that his own power "is at its lowest ebb."

We have seen (3) in the argument that the President may engage in foreign surveillance because the authorization to use military force implicitly includes the power to engage in such surveillance. We have seen (4) in the argument that FISA bans the President from engaging in such surveillance without going through the FISA process. Naturally, the Department of Justice, attempting to protect the President's prerogatives, emphasizes "inherent" power and implies that Congress lacks the authority to intrude on it.

But there are two other possible arguments, and they are sometimes important. (5) The President has authority because relevant congressional enactments should be construed, if they possibly can, to give him that authority. The reason is that whenever the President has a plausible claim of "inherent" power, statutes should be construed, if they possibly can, to recognize the power that he might well have as a matter of constitutional right. In other words, courts should avoid constitutional questions, and one way to do that is to refuse to adjudicate the President's claim of inherent authority by finding a grant of power from Congress.

(6) The President lacks authority because relevant congressional enactments should be construed, if they possibly can, to deny him that authority. The reason is that there is a plausible claim that the exercise of that authority violates a rights-protecting provision of the Constitution. Courts should avoid constitutional questions by refusing to interpret a statute to allow the president to intrude on constitutionally sensitive interests.

With respect to torture, the Department of Justice's Office of Legal Counsel made argument (5). The particular argument was weak, because the President cannot easily claim that a congressional ban on torture violates his inherent power; but the general form of the argument is fine, in the sense that it is plausible whenever the President has a solid claim of inherent power. The Supreme Court has often made argument (6), even when national security is at risk -- for example, by protecting free speech (Yates) and the right to travel (Kent v. Dulles) in the Cold War, and by protecting due process in World War II (Duncan and Endo).

With respect to wiretapping, argument (5) is available to the government, because there is a plausible claim of inherent power. Argument (6) is available to critics if the Fourth Amendment objection is strong. (It is not clear that it is.) Some of the hardest cases arise when the President has a reasonable claim of inherent power AND when there is a reasonable constitutional objection on the other side.

A final note: One of the less famous parts of Justice Jackson's Steel Seizure concurrence consists of an attack on "loose and irresponsible use of adjectives," including words like inherent, implied, incidental, war, plenary, and emergency. Jackson argued that such words are an effort to "amend" the Constitution. (He deserves special attention on this point, because he was FDR's Attorney General, and hardly oblivious to the constitutional claims of the President.) In so arguing, Jackson probably used the word "amend" too loosely, perhaps even irresponsibly; but he had a point. There is an unmistakable tension between some of the arguments of the Bush Administration, emphasizing inherent authority, and Justice Jackson's opinion in the Steel Seizure Case.

The analysis of the two positions probably has to be conducted issue-by-issue, and not in the abstract. My general point here is that most of the time, it is valuable to avoid disputes between (1) and (2), and to see if progress can be made by bracketing the most fundamental questions about "inherent" authority and by giving careful attention to what Congress has done.

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» Wednesday News Roundup from ACSBlog: The Blog of the American Constitution Society
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» Wednesday News Roundup from ACSBlog: The Blog of the American Constitution Society
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Comments

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Anonymous,
Sure it's worth considering. Connecting the dots on how limiting our own freedoms helps us to fight bad guys is also worth considering. (I don't think you'll be able to get very far in doing that.)
But in any case the only way to consder such changes is in the fresh light of day, not skulkiing around in the dark of night as the Administration has done.
If indeed we need to adjust the Constitution to wage a "war on terror" (yes, I am derisive that one can fight a military tactic) then GW Bush should at least have the manliness and vigor to voice the issues in public.

You're point on secrecy is well taken. However, it does make my comparison to the Constitutional Convention all the more apt. In that case, secrecy was considered essential to secure a desireable, albeit at the time illegal, objective. Perhaps the secret monitoring of domestic communications with suspected "terrorist" implications is similarly essential, and similarly illegal.

To avoid future problems with semantics, perhaps we should refer to the current conflict against Al Quaeda and similarly-minded organizations as the "war against terrorism". In any event, I am not suggesting that all civil liberties be sacrificed in this cause, but instead that the 4th Amendment be reevaluated to allow for this type of surveilance. While I agree that the derrogation of civil liberties is a serious matter, I assume you would agree that so to is the threat terrorists pose to life and liberty in this country, and defeating them will require serious and delicate balancing between those two interests. One cannot presumptively prevail over the other in all circumstances. Connecting the dots from a starting point of a government impotent to gather intelligence against terrorists to that starting points inevitable conclusions also does not get us very far.

I must confess that I am not familiar with the relevant statutes in this discussion, and as such, cannot contribute much more than my confessedly small historical and constitutional observations, but I appreciate the education on the more specific and weightier issues.

"...I assume you would agree that so to is the threat terrorists pose to life and liberty in this country, and defeating them will require serious and delicate balancing between those two interests."

Not in the least do I agree your statement above without discussion and examples. On what basis would I make such an assumption? We fought communism for 40 years under the Consitution. The burden is on proponents of change to explain why we need to make them.

I think that the real secret in front of us is that the Bush Administration has no real idea how to deal with Islamo-fascism, terrorism or whatever you want to call it. It uses secrecy not as a tool to combat the enemy but to prevent its own citizens from seeing that it has no real understanding of the problem or the solution and that we stand essentially undefended. "Secrecy" is a diversionary tactic.

More generally, if there are indeed reforms needed in our intelligence-gathering, then bring it publicly to Congress for debate and discussion.

As requested, let me provide some examples of why we can safely assume that terrorism should be treated as a serious threat. I can provide over 3,000 examples, from the morning of September 11.

That attack alone (and there are numerous other examples of the threat of terrorism to this and many countries, too numerous to be recounted) provides sufficient basis for the assumption that terrorism deserves more than a furrowed brow and a nervous glance before giving presumptive weight to "freedom of privacy" over "freedom from being incinerated in the workplace by exploding jet fuel". I think you'll find that most value the latter at least as much as knowing that no one is reading their emails.

I apoligize if the above gives the impression I do not value privacy. I certainly do, but as someone who lost loved ones on September 11, this is a particularly sensitive subject.

As to my burden of showing that change is necessary - obviously our methods of protecting ourselves from terrorist attacks pre-9/11 was inadequate. Perhaps because improper weight was giving to privacy concerns. Perhaps that improper weight resulted from the current formulation of the 4th Amendment, or at least prevailing jurisprudence on how that amendment is to be interpreted.

As to your secrecy argument, wouldn't an open discussion of methods of surveillance, what phrases in wire communications or behaviors trigger surveillance, and a host of other specifics, provide a road map for evasion to our enemies? Secrecy is essential in warfare - the chief executive cannot consult with Congress to determine the timing and location of attacks, who informants are, or even how intelligence is gathered, without risking lives.

1. Communism was a movement embodied by organized states. It is entirely different than dealing with international terrorist organizations. Apples and oranges.

2. We did not necessarily fight Communism "under the Constitution". The Cold War (and those parts of it that were not so "cold") had numerous secretive, and even unconstitutional aspects, lest we forget the Iran/Contra scandal. Indeed, fighting Communism led to many official acts of surveillance by our government on its own citizens that were both secretive and of questionable constitutionality.

Anonymous,
You answered a point I didn't make. I did not say that there were no danegrous people in the world who wish to do us (in the USA, Europe etc etc) harm. Of course there are.

The issue is why you assume that fighting these people requires abridging our own freedoms. Why do you assume that? Our enemies are motivayed by some sort of weird ideology and they use terrorism as a tactic. I am not suggesting that we don't need intelligence on their activities.

But, to answer your question about disclosing tactics with one simple example, wouldn't it be an extremely effective tactic to disclose that NSA is reviewing all emails for particular patterns. You don't have to disclose in public what the patterns actually are. But the mere common knowledge that NSA was doing such surveillance would put a biug crimp in the bad guys plans and make it more difficult for them to communicate as they would have to develop all sorts of silly codes and that would give them more chance to slip up etc etc. I think that a certain diegree of transparency might actually aid intelligence.

At any rate, I don't really think we are going to be able to either persuade or, alas, even inform each other.